Birthright Citizenship and the 14th Amendment
© 2015 Rick Adamson
By Rick Adamson
Did you know that birthright citizenship for children of illegal residents has never been tested in court?
Section one of the 14th Amendment states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The amendment was adopted in 1868.
The amendment addresses citizenship rights and equal protection of the laws, and was proposed in response to issues related to former slaves following the American Civil War. Further, it was meant to constitutionalize the Civil Rights act of 1866 and nullify the Supreme Court’s decision in Dred Scott v. Sandford.
[Dred Scott v. Sandford, (1857), was a landmark decision by the U.S. Supreme Court in which the Court held that African Americans, whether enslaved or free, could not be American citizens and therefore had no standing to sue in federal court, and that the federal government had no power to regulate slavery in the federal territories acquired after the creation of the United States.
In 1865, Congress passed what would become the Civil Rights Act of 1866, guaranteeing citizenship without regard to race, color, or previous condition of slavery or involuntary servitude. The bill also guaranteed equal benefits and access to the law, a direct assault on the Black Codes passed by many post-war states. The Black Codes attempted to return ex-slaves to something like their former condition by, among other things, restricting their movement, forcing them to enter into year-long labor contracts, prohibiting them from owning firearms, and by preventing them from suing or testifying in court.
The constitution, theretofore, contained no definition of citizen and it was believed that in order to be a US citizen a person had to first be a citizen of a State. State laws varied and were sometimes unclear about who could be a citizen. The 14th Amendment eliminated that issue by stating that a person’s citizenship would be determined by his or her relationship to the U.S. and not to that of a State. And, further, that States were prohibited from making certain laws that might infringe upon a citizen’s rights.
The clause's meaning with regard to a child of legal immigrants was tested in United States v. Wong Kim Ark (1898). The Supreme Court held that under the 14th Amendment, a man born within the United States to Chinese citizens who have a permanent domicile and residence in the United States and are carrying on business in the United States—and whose parents were not employed in a diplomatic or other official capacity by a foreign power—was a citizen of the United States. Subsequent decisions have applied the principle to the children of foreign nationals of non-Chinese descent.
Note that the man’s parents were legal permanent residents of the U.S.A.
Some scholars argue that the Citizenship Clause of the 14th Amendment should not apply to the children of unauthorized aliens because the problem of unauthorized aliens did not exist at the time the Fourteenth Amendment was adopted.
They argue, further, that unauthorized immigrants are not subject to the jurisdiction of the US government (the Supreme Court has concluded that this phrase referred to ‘being required to obey U.S. law’) due to the fact that they are here illegally and that, therefore, their offspring cannot be citizens simply by being born on US soil. See related article:
Congress during the 21st century has discussed revising the clause to more clearly indicate that it does not apply to children born of unauthorized immigrants and to reduce the practice of "birth tourism", in which a pregnant foreign national gives birth in the United States for purposes of the child's citizenship.
The issue of birth right citizenship for children of parents who are not citizens or permanent legal residents has never been heard by the U.S. Supreme Court. For more back ground see this article: "Anchor babies, birthright citizenship, and the 14th Amendment"
Since the issue concerning illegal immigration had not surfaced (the term illegal alien had not even been invented) it seems very unlikely that the writers of the Amendment had any intention, other than to correct the injustice being perpetrated against African Americans, of conferring citizenship upon persons (or their offspring) passing through (traveling) or residing upon our territory unlawfully.
I mean, really, it appears to be entirely without logic to entice people to break our laws by telling them that if they can arrange to have a child on US soil, through whatever means, the child will be a US citizen and have all of the rights and privileges of citizenship.
Congress needs to MAN UP and correct this misconception by defining the meaning of “subject to the jurisdiction thereof” or by some other means.
And That’s that!
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